On Point blog, page 20 of 20
Jury Waiver – Challenge – Applicability of State v. Bangert
.State v. Bobby G. Grant, 230 Wis.2d 90, 601 N.W.2d 8 (Ct. App. 1999)
For Grant: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether Grant’s waiver of jury trial was invalid because the trial court failed to advise that the verdict must be unanimous.
Holding: The procedure applicable to challenging guilty pleas, State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) applies to this context;
Relief from judgment
State v. Joseph Schultz, 224 Wis.2d 499, 591 N.W.2d 904 (Ct. App. 1999)
For Schultz: Robert R. Raehsler
Issue/Holding: A party in a civil case may seek relief from judgment under Wis. Stats., § 806.07. Where the basis for the motion is “mistake,” the primary question is whether the party’s conduct “was excusable under the circumstances.” Schultz should have been allowed to reopen a judgment so that he could litigate a crucial issue that he justifiably,
Right to Counsel – Postconviction Proceedings, Collateral Attack
State ex rel. Phillip I. Warren v. Schwarz, 219 Wis.2d 615, 579 N.W.2d 698 (1998), affirming 211 Wis. 2d 708, 566 N.W.2d 173 (Ct. App. 1997) / State v. Phillip I. Warren, 219 Wis.2d 615, 579 N.W.2d 698 (1998), on certification
For Warren: Ralph A. Kalal
Issue: Whether Warren was entitled to appointment of counsel for postconviction proceedings.
Holding (¶66):
¶66 Warren’s motion for post-conviction relief pursuant to Wis.
§ 974.06 Serial Litigation: Defendant Represented by Trial Counsel on Prior, Direct Appeal
State v. Spriggie Hensley, Jr., 221 Wis. 2d 473, 585 N.W.2d 683 (Ct. App. 1998)
For Hensley: Pro se
Issue/Holding: The rule that a defendant’s representation by the same attorney at trial and on direct appeal constitutes a “sufficient reason” for not asserting ineffective assistance of counsel in the direct appeal survives State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994).
§ 974.06 – “Custody” Requirement – Fulfilled Where Defendant on Probation
State v. Donald Mentzel, 218 Wis. 2d 734, 581 N.W.2d 581 (Ct. App. 1998)
For Mentzel: Raymond M. Dall’Osto
Issue/Holding:
We agree with the logic of Napoles. For purposes of § 974.06, Stats., the reality of a probationary status is that it results directly from the trial court’s consideration of dispositional alternatives at a sentencing hearing. Subject to any other bars, we conclude that all defendants on probation have standing to pursue postconviction relief under § 974.06.
Plea-Withdrawal – Post-sentencing — Procedure — Waiver of Attorney-Client Privilege
State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer
Issue/Holding: fn. 8:
The State’s right to question a defendant’s attorney when the defendant alleges that the attorney failed to properly inform him or her before entering a plea is established in State v. Van Camp, 213 Wis.2d 131, 145, 569 N.W.2d 577,
Plea-Withdrawal – Post-sentencing – Procedure – “Negative Inference” from Defendant’s Testimony Insufficient
State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer
Issue/Holding:
It therefore appears to be an issue of first impression in Wisconsin whether a court can accept a negative inference to establish proof by clear and convincing evidence. Under the beyond a reasonable doubt standard, a negative inference is sufficient only if there is independent support in the evidence.
Plea-Withdrawal, Post-sentencing — Procedure — Reliance on Counsel’s Expertise to Infer Understanding of Elements
State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer
Issue/Holding:
The State concedes that the discussion between Willett and Nichelson did not include a “complete catalogue of the elements of the offense.” It also appears to concede that, “examined in a vacuum, the above colloquy [between Willett and Nichelson] would not satisfy the [constitutional] requirements.”